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2021 DIGILAW 629 (JHR)

Samsad Alam v. State of Jharkhand

2021-08-16

RAJESH SHANKAR

body2021
ORDER : 1. The present case is taken up today through video conferencing. 2. The present writ petition was initially filed for issuance of direction upon the respondents to restrain the construction over the land appertaining to Khata No. 21, plot nos. 729 and 734, Mouza-Darida, P.S. Tamar, Thana No. 186, District Ranchi measuring total area of 14.46 acres (hereinafter to be referred as “the said land”). 3. Subsequently, by way of an interlocutory application being I.A. No. 1479 of 2021, the petitioner has sought amendment in the writ petition to the extent of adding some state authorities as party respondents and making additional prayer to set aside the order dated 19.09.2019 passed by the Sub-Divisional Magistrate, Bundu, Ranchi under section 144 of Cr.P.C. in Case No. M-15/2019. The petitioner has also prayed in the said interlocutory application to set aside the notice as contained in memo no. 592(ii) dated 16.09.2020 issued by the Circle Officer, Tamar Ranchi whereby a date was fixed for demarcation of the said land. Further prayer has also been made in the said interlocutory application for issuance of direction upon the respondents to restore the possession of the said land in favour of the petitioner who was in lawful possession of the same as also to pay the compensatory penal cost in his favour for causing unnecessary harassment and torture. 4. Learned counsel for the petitioner submits that the petitioner/his ancestors are the lawful tenants of the said land. Earlier, the said land was wrongly recorded in the name of Sakina Bibi in the survey khatiyan. Thereafter, the ancestor of the petitioner namely Rajab Ali filed objection against the said entry, which was allowed and the said land was recorded in the name of Rajab Ali, who was the eldest among the three brothers. The said land was divided among them on 07.04.1934 and all of them came in peaceful possession of the same. The descendants of Rajab Ali sold the said land to the respondent no. 2 on 04.05.2007, which was actually in the share of the petitioner. It is further submitted that the said land was in possession of the petitioner and the respondent no. 2 never came in possession of the same after its purchase vide sale-deed dated 04.05.2007. Earlier a proceeding under section 144 Cr.P.C. was initiated vide Misc. 2 on 04.05.2007, which was actually in the share of the petitioner. It is further submitted that the said land was in possession of the petitioner and the respondent no. 2 never came in possession of the same after its purchase vide sale-deed dated 04.05.2007. Earlier a proceeding under section 144 Cr.P.C. was initiated vide Misc. Case No. 121 of 2011 on the application of one Nikolas Tete against the ancestors of the petitioner namely Md. Afgani and others which was disposed of by the Sub-Divisional Magistrate, Ranchi on 16.12.2011 directing the parties to move before appropriate forum. Emanual Barla (the respondent no. 2) preferred an application for demarcation of the said land whereupon the Circle Officer, Tamar (Ranchi) issued notice as contained in memo no. 592(ii) dated 16.09.2020 directing the adjoining raiyats to remain present at the time of measurement scheduled to be held from 06.10.2020 to 08.10.2020. The respondent no. 2 had also filed an application before the Sub-Divisional Magistrate, Bundu, Ranchi and on the basis of the said application, a proceeding being Case No. M-15/2019 was initiated under Section 144 Cr.P.C. The said authority, vide impugned order dated 19.09.2019, ordered to vacate the said land in favour of the respondent no. 2 and restrained the second party (the petitioner and others) from entering the same by superseding his own earlier order dated 16.12.2011. It is also submitted that the Sub-Divisional Magistrate, Bundu, Ranchi failed to appreciate that the respondent no. 2 had not brought on record any evidence to show his possession over the said land since the date of purchase. On the other hand, the petitioner had shown his physical possession over the ancestral landed property since 07.04.1934 till the date of dispossession. In the garb of demarcation of the said land, the respondent no. 2 has misused the entire government machineries and has forcefully dispossessed the petitioner. When the petitioner went to Tamar Police Station for lodging complaint against the respondent no. 2, no action was taken by the officer-in-charge of the said police station. The learned Sub-Divisional Magistrate, Ranchi also failed to appreciate that there was a written partition among the ancestors of the petitioner. 5. Learned counsel appearing for the respondent-State submits that the petitioner failed to produce any document showing his claim over the said land and was trying to disturb the respondent no. The learned Sub-Divisional Magistrate, Ranchi also failed to appreciate that there was a written partition among the ancestors of the petitioner. 5. Learned counsel appearing for the respondent-State submits that the petitioner failed to produce any document showing his claim over the said land and was trying to disturb the respondent no. 2 from enjoying his legal right over the same. As such, vide impugned order dated 19.09.2019 passed by the Sub-Divisional Magistrate, Bundu, Ranchi, the petitioner was restrained from going to the disputed land in apprehension of breach of peace and to maintain public tranquility. It is further submitted that by filing the present writ petition, the petitioner has in fact sought confirmation of his title over the said land, which cannot be decided under Article 226 of the Constitution of India. 6. Heard the learned counsel for the petitioner as well as the respondent-State and perused the materials available on record. 7. The petitioner claims his right over the said land on the ground that he is the legal heir and successor of Sheikh Sobrati who was one of the brothers of Khewatdar-Rajab Ali. His claim is that the said land was though entered in the name of Rajab Ali, all the brothers having equal share in it peacefully enjoyed the same after partition without any hindrance and disturbance. On the other hand, on perusal of the record, it appears that the respondent no. 2 is claiming his right, title and interest upon the said land by virtue of a registered sale-deed executed by the successor of the Khewatdar-Rajab Ali. 8. Earlier, a proceeding under Section 144 Cr.P.C. with respect to the said land being Misc. Case No. 121 of 2011 was initiated by the Sub-Divisional Magistrate, Bundu, Ranchi on the report of Officer-in-charge, Tamar Police Station stating that there was apprehension of breach of peace between the parties. The said proceeding was dropped by the Sub-Divisional Magistrate, Bundu, Ranchi giving liberty to the parties to move before the competent court of law observing that both the parties produced rent receipts for the said land claiming their right, title, interest and possession over the said land. The respondent no. 2 filed an application for demarcation of the said land whereupon notice dated 16.09.2020 was issued directing all the adjoining raiyats to remain present on the date of measurement scheduled to be held from 06.10.2020 to 08.10.2020. The respondent no. 2 filed an application for demarcation of the said land whereupon notice dated 16.09.2020 was issued directing all the adjoining raiyats to remain present on the date of measurement scheduled to be held from 06.10.2020 to 08.10.2020. Case No. M-15/2019 was also initiated under Section 144 of Cr.P.C. by the Sub-Divisional Magistrate, Bundu, Ranchi on the basis of application made by the respondent no. 2 and the report submitted by the Officer-in-charge, Tamar Police Station as well as looking to the apprehension of breach of peace over the said land. After hearing the parties, the Sub-Divisional Magistrate, Bundu, Ranchi found that the first party (the respondent no. 2) was claiming his right upon the said land by purchasing it from the successors of the Khewatdar. On the other hand, the petitioner and others (second party) were claiming their right upon the said land being the descendants of the brother of Khewatdar. It was found by the Sub-Divisional Magistrate, Bundu, Ranchi that the said land was recorded in the name of Khewatdar Rajab Ali and not in the name of his brothers. He also found that there was apprehension of breach of peace at the instance of the second party (the petitioner and others) and as such the possession of the said land was ordered to be vacated in favour of the first party by restraining the second party from going to the said land. 9. The impugned order dated 19.09.2019 was passed in exercise of the power conferred under section 144 Cr.P.C. which empowers the Sub-Divisional Magistrate to issue order in urgent cases of nuisance or apprehended danger of some event having potential to cause trouble or damage to human life or property by directing any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such magistrate considers that such direction is likely to prevent or tends to prevent obstruction, annoyance or injury to any person lawfully employed, or likely to prevent a disturbance of the public tranquility, or a riot, or an affray. The order passed under section 144 Cr.P.C. is temporary in nature which cannot last beyond two months from making thereof and by now, the effect of the said order has already come to an end. 10. The order passed under section 144 Cr.P.C. is temporary in nature which cannot last beyond two months from making thereof and by now, the effect of the said order has already come to an end. 10. It is well settled that section 144 Cr.P.C. does not confer any power on the Executive Magistrate to adjudicate or decide any dispute of civil nature or question of title to properties or entitlement to rights but such power may be exercised to protect established right of any person and against those who interfere with the lawful exercise thereof for maintenance of public peace and tranquility. 11. The Sub-Divisional Magistrate, Bundu, Ranchi considering the fact that the petitioner had no legal document relating to the said land, passed the impugned order dated 19.09.2019 restraining the petitioner to enter the said land so as to maintain public peace and tranquility. Moreover, the petitioner had the alternative remedy to file revision against the order dated 19.09.2019 passed by the Sub-Divisional Magistrate, Bundu, Ranchi, however he failed to avail the same. That apart, even after the order dated 16.12.2011 passed in Misc. Case No. 121 of 2011, the petitioner did not move before the Civil Court for determination of his right, title and interest over the said land as claimed. 12. Looking to the nature of the dispute involved in the present case, this Court is of the view that the same being purely civil in nature, cannot be entertained and decided under writ jurisdiction. 13. One of the contentions of the learned counsel for the petitioner is that the petitioner/his ancestors had been in possession over the said land since 07.04.1934 and the government authorities have dispossessed him by using police force giving possession of the same to the respondent no. 2. The said claim of the petitioner is purely factual in nature which also cannot be entertained by this Court under writ jurisdiction. 14. In view of the aforesaid discussion, this Court does not find it a fit case to exercise the extraordinary writ jurisdiction so as to entertain the petitioner’s prayer. The petitioner however, if so advised, may move before the competent court of civil jurisdiction for adjudication of his right, title, interest and possession over the land in question. 15. The writ petition is, accordingly, dismissed with aforesaid observation. 16. The petitioner however, if so advised, may move before the competent court of civil jurisdiction for adjudication of his right, title, interest and possession over the land in question. 15. The writ petition is, accordingly, dismissed with aforesaid observation. 16. Consequently, I.A. No. 1479 of 2021 and I.A. No. 1792 of 2021 also stand dismissed.